249 F.3d 130 (2nd Cir.

2001)

JENNIFER A. DAVENPORT, PLAINTIFF-APPELLANTCROSS-APPELLEE,

v.
HARRY N. ABRAMS, INC., CARMAN MILLS, THE TIMES
MIRROR COMPANY, THE TIMES MIRROR COMPANY
PENSION PLAN, THE GROUP BENEFITS PLAN AND RON
MADURA, DEFENDANTS-APPELLEES-CROSSAPPELLANTS.
Docket Nos. 00-9322, 00-9418
No. 823--August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: April 23, 2001
May 4, 2001

Appeal from a judgment of the United States District Court for the
Southern District of New York, Louis A. Kaplan, Judge, granting
defendants' motion for summary judgment and denying plaintiff's motion
for summary judgment.
Modified in part, and in remaining part affirmed.
Edgar Pauk, New York, NY, for Plaintiff-Appellant-Cross-Appellee.
Eric B. Chaikin, Chaikin & Chaikin, New York, NY, for DefendantsAppellees-Cross-Appellants.
Before: Jacobs, Parker and Katzmann, Circuit Judges.

Per Curiam
1

Plaintiff-Appellant Jennifer A. Davenport commenced this action pro se on

November 23, 1998, pursuant to the Employee Retirement Income Security Act
of 1974 ("ERISA") 502(a)(1)(A) and (B), 29 U.S.C. 1132(a)(1)(A) and

(B), against Harry M. Abrams, Inc., her employer ("Abrams"); the Times
Mirror Company, which owned Abrams; Carmen Mills, Administrator of
Abrams' Human Resources Department; The Times Mirror Pension Plan; The
Group Benefits Plan; and Ron Madura, identified as Benefit Plans
"Administrator" (collectively, "defendants"). Davenport sued to recover
benefits that defendants allegedly owed to her under the Times Mirror Pension
Plan ("the Plan").
2

The parties filed cross-motions for summary judgment; defendants argued

(inter alia) Davenport's failure to exhaust, and Davenport pressed a claim for
civil penalties against the defendants. On September 20, 2000, the United
States District Court for the Southern District of New York (Kaplan, J.),
rejecting the magistrate judge's recommendations, granted defendants' motion
for summary judgment and dismissed without prejudice Davenport's claim for
benefits under the Plan. The court denied Davenport's motion for civil
penalties, but dismissed that claim without prejudice.

Davenport argues on appeal that she was under no obligation to

administratively exhaust her claim, and, even if she was, that the court abused
its discretion in failing to rule that exhaustion would have been futile.
Defendants argue on appeal that the district court should have ruled that
Davenport's unexhausted claim was barred by the statute of limitations.
Defendants also argue that, in any event, the dismissal of Davenport's civil
penalties claim should have been entered with prejudice.

BACKGROUND
4

Davenport performed graphic art services for Abrams, an international art book
publishing company, from January 27, 1987 through December 16, 1996,
working on Abrams' premises at least 1000 hours per year in all years except
1987 and 1994. Davenport was retained as an independent contractor and
therefore was provided no benefits.

As early as 1989, Davenport grew dissatisfied with the financial disadvantages

of her classification as an independent contractor, but she took no concrete step
to explore benefits until February 1997, when her lawyer wrote to the president
of Abrams stating that Abrams' refusal to allow Davenport to participate in
Abrams' employee benefit plan was a violation of ERISA. Between February
1997 and August 1998, Davenport or her lawyer dispatched seven letters to
Abrams and Times Mirror asserting Davenport's right to participate in Abrams'
employee benefit plan and inquiring about any such benefits that may already
have accrued.1 In a February 28, 1997 response, Times Mirror's Deputy

General Counsel advised Davenport that "[i]t is Times Mirror's and Abrams'
view that as an independent contractor you were not covered by any of the
benefit plans of Abrams. From the correspondence in our file, I understand you
are of a different view."
6

It is undisputed that Davenport has filed no application for benefits under the
Plan. And the district court found that Davenport did not request a copy of the
Summary Plan Description ("SPD") or any of the Plan documents. During
discovery, Davenport (for the first time) requested, and has received, copies of
the "Harry N. Abrams Retirement Plan," as effective January 1, 1985 (which
putatively would have applied to her when she began working at Abrams in
1987) and the 1994 version of the "Times Mirror Consolidated Pension Plan."

DISCUSSION
1. Failure to Exhaust
7

The district court held that Davenport "inexcusably has failed to avail herself"
of the remedies under the Plan even if she only received official notice of those
remedies after commencing the instant lawsuit. Davenport insists on appeal
that she has done all that the exhaustion doctrine requires. She advances the
following syllogism: Department of Labor regulations require a "reasonable"
claims procedure (i.e., one that is described in a SPD and communicated to
participants) and provide for an alternative procedure in which the claim is filed
with the employer; defendants bore the burden of showing that the Plan's claim
procedure was "reasonable," but failed to put the SPD in evidence; therefore,
Davenport complied with the alternative claims procedure by virtue of the
correspondence with her employer, and has fully exhausted her remedies.

This argument is not properly asserted in this Court, because Davenport never
argued in district court that the absence of the SPD from the record compels the
finding that the Plan's claims procedure is "unreasonable" as a matter of law.
See Mellon Bank N.A. v. United Bank Corp., 31 F.3d 113, 116 (2d Cir. 1994)
("We will hear new argument on appeal only when necessary to avoid manifest
injustice.") (internal quotations and citation omitted)). In any event, Davenport
cites no authority, and we find none, assigning to defendants the burden to
place the SPD in the record or suggesting that it was error to dismiss
Davenport's claim for benefits (without prejudice) without first making a
determination that the Plan's claims procedure, as described in the SPD, was
"reasonable."2
Davenport argues in the alternative that the district court should have excused

Davenport argues in the alternative that the district court should have excused
her failure to exhaust on the ground that (i) any effort to exhaust would be
futile, or (ii) she was denied meaningful access to the Plan's administrative
process. Neither exception applies.
As to futility:

10

The primary purposes of the exhaustion requirement are to: (1) uphold
Congress' desire that ERISA trustees be responsible for their actions, not the
federal courts; (2) provide a sufficiently clear record of administrative action if
litigation should ensue; and (3) assure that any judicial review of fiduciary
action (or inaction) is made under the arbitrary and capricious standard, not de
novo. Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir.
1993) (citing Denton v. First Nat'l Bank, 765 F.2d 1295 (5th Cir.), rh'g denied,
772 F.2d 904 (5th Cir. 1985)).

11

Kennedy stated that futility would excuse an ERISA plaintiff's failure to

exhaust only "[w]here claimants make a clear and positive showing that
pursuing available administrative remedies would be futile." Id. (internal
quotation marks and citation omitted) (emphasis added). Kennedy rejected
plaintiffs' contention of administrative futility because "[t]here [was] no
evidence in the record that any ERISA plaintiff even notified [the plan
administrator] of any disputed claim." Id. (citation omitted)

12

Davenport has not made a "clear and positive showing" that proper assertion of
her claim would be futile. The 1997-98 correspondence did not amount to an
"unambiguous application for benefits and a formal or informal administrative
decision denying benefits [such that] it is clear that seeking further
administrative review of the decision would be futile." Barnett v. IBM Corp.,
885 F. Supp. 581, 588 (S.D.N.Y. 1995). The putative "denial" of benefits
contained in Times Mirror's February 26, 1998 letter to Davenport did not
render futile further pursuit of her claims through the proper channels. See
Bourgeois, 215 F.3d at 480 n.14 ("[A]llowing informal attempts to substitute
for the formal claims procedure would frustrate the primary purposes of the
exhaustion requirement"); Barnett, 885 F. Supp. at 588 ("[I]f an informal or
unsubstantiated denial of a "claim" that was never filed or formally presented is
reviewable in the federal courts, then, in such situations, the courts and not
ERISA trustees will be primarily responsible for deciding claims for
benefits."). Defendants' position in this lawsuit does not establish futility. See
Wilson v. Globe Specialty Prods., 117 F. Supp. 2d 92, 99 (D. Mass 2000) (plan
administrator "arguably [had] evidenced an intent to refuse [plaintiff's] claim,"
but court required exhaustion because it would "not predict how [the

administrator] would have decided [plaintiff's] claim on review"); cf.

Communications Workers of Am. v. AT&T, 40 F.3d 426, 433 n.1 (D.C. Cir.
1994) (actions taken to defend lack of entitlement to benefits cannot establish
futility because otherwise the exhaustion doctrine would be "entirely
undermine[d]," as plaintiffs could "bypass administrative remedies, file suit,
and then hope for subsequent events to justify futility claims.").3
13

Davenport argues that the district court should have waived this exhaustion
requirement because she lacked access to the claims procedures. But we agree
with the district court's reasoning:

14

Even if plaintiff was unaware of her remedies under the plan prior to the
institution of this action, she became aware of them now and yet inexcusably
has failed to avail herself of them. A dismissal for failure to exhaust would
promote the purposes of [ERISA] by enabling the plan committee to perform
the function that Congress contemplated that it would perform.

15

Davenport, who was represented by counsel throughout, never attempted to file

a claim for benefits or to request the SPD.

16

Davenport was required to exhaust even if she was ignorant of the proper
claims procedure. See Meza, 908 F.2d at 1280 ("Even though [plaintiff] did not
receive a copy of the [SPD] as required by [ERISA], he has not shown that the
lack of information has harmed him or precluded him from pursuing his
administrative remedies at this point.") (emphasis added); Koenig v. Waste
Mgmt, Inc., 104 F. Supp. 2d 961, 966 (N.D. Ill. 2000) (explaining that the
"company did not have to notify [plaintiff] of the claims procedure until her
claim was denied, a step that had not yet occurred," and concluding that "this is
a classic case of jumping the gun") (citations omitted); DeLong v. Teacher's
Ins. & Annuity Ass'n, No. 99-1384, 2000 WL 426193, at *5 (E.D. Pa. March
29, 2000) (plaintiff's claim of denial to administrative process "[did] not rise to
the level of futility," because "[i]t would be illogical for plaintiff to be allowed
to establish futility based on ignorance of a claims process which he was never
close to invoking").
2. Statute of Limitations

17

Defendants argue that Davenport's claim was barred by the applicable six-year
statute of limitations imposed by New York law, and that the district court erred
by not so ruling. In Miles v. New York State Teamsters Conf. Pension Plan,
698 F.2d 593 (2d Cir. 1983), we held that "[a] plaintiff's ERISA cause of action

accrues . . . when there has been a repudiation by the fiduciary which is clear
and made known to the beneficiaries." Id. at 598 (internal quotation marks and
citation omitted). In Carey v. International Bhd. of Elec. Workers Local 363
Pension Plan, 201 F.3d 44 (2d Cir. 1999) we clarified that a plaintiff's ERISA
cause of action can accrue even where the plaintiff has not filed a formal
application for benefits. Id. at 490.
18

Defendants invite us to extend Carey by holding that Davenport's cause of

action accrued as soon as she knew that she was not entitled to participate in a
benefits or pension plan--that is, in 1987, when she accepted a position as an
independent contractor. This argument is premature given the failure to
exhaust. If, in the course of exhausting her remedies, Davenport is in fact
granted benefits, then there would be no occasion for defendants to interpose a
statute of limitations defense. If Davenport's claim for benefits is denied, then
the grounds for that denial may affect the statute of limitations analysis, and
there will be time enough to address those grounds when presented in the
district court when a statute of limitations defense is asserted.4
3. Civil Penalties Claim

19

The district court dismissed Davenport's case without prejudice to a future

claim for penalties under ERISA 1132(c)(1) based on the administrator's
alleged failure to provide her with plan information. Defendants argue that the
district court should have ruled that the claim fails whether or not Davenport
was covered by the Plan because no such penalty may be imposed unless there
has been a specific request for the information.
ERISA 501(c)(1) states, in part:

20

Any administrator ... who fails or refuses to comply with a request for any
information which such administrator is required by this subchapter to furnish
to a participant or beneficiary (unless such failure or refusal results from
matters reasonably beyond the control of the administrator) by mailing the
material requested to the last known address of the requesting participant or
beneficiary within 30 days after such request may in the court's discretion be
personally liable to such participant or beneficiary in the amount of up to $100
a day from the date of such failure or refusal, and the court may in its discretion
order such other relief as it deems proper.

21

Id. By its terms, ERISA allows for civil penalties only if an administrator has
refused to comply with "a request for information." Id.; see also Matassarin v.

Lynch, 174 F.3d 549, 570 (5th Cir. 1999).

22

Davenport concedes that she "never asked for the Summary Plan Description
by name." And the district court found that the December 5, 1997 letter did not
request an SPD. Davenport's only specific information request was for the type
and amount of any vested benefits that she had accrued in any plans in which
she may have participated. Defendants did not produce the SPD because they
did not believe that Davenport was covered by the Plan. In the absence of a
specific request for an SPD (and in light of the nature of the requests for
information that Davenport did make and the fact that she was represented by
counsel), statutory penalties are inappropriate in this case.

23

For the reasons set forth above, the judgment of the district court dismissing
this action on the ground that Davenport failed to exhaust her remedies under
the Plan is hereby affirmed, except insofar as the judgment recites that the
dismissal is without prejudice to a subsequent claim for civil penalties under
ERISA for failure to provide plan information. The judgment should be
modified to provide that that claim is dismissed with prejudice.

NOTES:
1

Between January 1997 and August 1998, Davenport was represented by Laura
Schnell of the law firm of Vladeck, Waldman, Elias & Engelhard. Davenport
retained present counsel on January 19, 2000.

Davenport's argument that the claims procedure was unreasonable as a matter

of law because she was not given any information about it--a claim she did
raise in the district court--is also unavailing. The district court properly rejected
this argument: "[i]n view of the fact that plaintiff's employer never considered
her to be covered by the plan, it is not surprising that she was not provided with
a[n] [SPD] in a routine way." Ignorance of a claim procedure does not defeat
the exhaustion requirement. See Meza v. General Battery Corp., 908 F.2d 1262,
1279 (5th Cir. 1990) ("[Because] there is no indication that [plaintiff] ever
applied for his pension benefits prior to filing suit," allowing plaintiff to make
his initial claim for pension benefits by filing a lawsuit would undermine the
policies underlying the exhaustion requirement); see also Bourgeois v. Pension
Plan, 215 F.3d 475, 480 (5th Cir. 2000) ("Meza imposes a duty to seek the
necessary information even if it has not been made available").

This case is distinguishable from Marsh v. Crucible, Inc., 783 F. Supp. 938
(W.D. Pa. 1992), because in Marsh, the court applied the futility exception only

where both the plan administrator and the review committee (i) had made a
"final (albeit hypothetical) determination" of a "claim that is identical to that
being urged by the plaintiffs," and (ii) had initiated a separate action seeking a
declaration that the plaintiffs were not entitled to benefits. Id. at 942.
4

The American Association for Retired Persons ("AARP") submitted an amicus

brief arguing that the statute of limitations did not begin to run on Davenport's
claim for benefits when she was hired because only a fiduciary can repudiate an
individual's claim for benefits. We do not reach the merits of this issue.